AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (the “Merger
Agreement”)
is
made and entered into by and between Cyberfund, Inc., an Oklahoma corporation
(“Cyberfund”),
and
ROK Entertainment Group Inc., a Delaware corporation (“ROK”),
being
sometimes referred to herein individually as the “Constituent
Corporation”
and
collectively as the “Constituent
Corporations.”
R
E C I T A L S:
A. Cyberfund
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Colorado. Cyberfund has authorized capital consisting
of
101,000,000 shares, divided into 100,000,000 shares of common stock, par value
$.001 per share, and 1,000,000 shares of preferred stock, par value $.001 per
share. As of November 27, 2007 (said date being the record date for determining
the stockholders of Cyberfund entitled to vote on the Merger Agreement),
50,250,876 shares of the common stock were issued and outstanding. As of the
date of the execution hereof, no shares of Cyberfund preferred stock were
outstanding.
B. ROK
is a
corporation duly organized, validly existing and in good standing under the
laws
of the State of Delaware. ROK has authorized capital consisting of 101,000,000
shares, divided into 100,000,000 shares of common stock, par value $.00l per
share, and 1,000,000 shares of preferred stock, par value $.001 per share.
As of
the date of execution hereof, 1,000 shares of ROK common stock were issued
and
outstanding, all of which were held by Cyberfund. As of the date of execution
hereof, no shares of ROK preferred stock were outstanding.
C. The
Board
of Directors of Cyberfund have determined that, for the purpose of effecting
the
reincorporation of Cyberfund in the State of Delaware, it is advisable and
in
the best interest of Cyberfund that Cyberfund merge with and into ROK upon
the
terms and conditions set forth herein.
D. The
respective Boards of Directors of the Constituent Corporations have authorized
and approved the merger of Cyberfund with and into ROK in accordance with the
provisions of Sections 368(a) (1) (F) of the Internal Revenue Code of 1986,
as
amended (the “Code”),
and
Sections 18-1081 et seq. of the Oklahoma General Corporation Act (the
“OGCA”)
and
Sections 251 et seq. of the General Corporation Law of Delaware (the
“DGCL”),
upon
the terms and conditions set forth in this Merger Agreement (the “Merger”)
and
have approved this Merger Agreement and directed that it be executed by the
undersigned officers.
E. Holders
of approximately __% of the issued and outstanding common stock of Cyberfund
approved the Merger and the Merger Agreement at a special meeting of the
shareholders of Cyberfund held on _____ __, 2007. The sole stockholder of ROK
also approved the Merger and the Merger Agreement by consent in lieu of a
special meeting.
F. It
is the
intention of the Constituent Corporations that the Merger shall be a tax-free
reorganization pursuant to the applicable provisions of the Code.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, and for the purpose of stating the terms and
conditions of the Merger, the mode of effectuating the same, and such other
details and provisions as are deemed desirable, the parties hereto have agreed,
and do hereby agree, subject to the terms and conditions hereinafter set forth,
as follows:
ARTICLE
I
TERMS
OF MERGER
1.1 Merger.
On the
Effective Date of the Merger (as hereinafter defined), in accordance with the
provisions of Sections 18-1081 et seq. of the OGCA, Sections 251 et seq. of
the
DGCL and Section 368(a) (1) (F) of the Code, Cyberfund shall be merged with
and
into ROK, which shall be sometimes referred to herein as the “Surviving
Corporation,”
upon
the terms and conditions set forth in the subsequent provisions of this Merger
Agreement.
1.2 Approval
of Stockholders.
The
stockholders of the Constituent Corporations have duly approved the Merger
Agreement and the transactions contemplated herein.
1.3 Filings
and Effectiveness.
As soon
as practicable following satisfaction of all requirements imposed by the OGCA,
DGCL and federal securities laws, Cyberfund and ROK will cause (i) the Articles
of Merger along with any other required document to be filed with the Office
of
the Secretary of State of Oklahoma pursuant to Sections 18-1081 et seq. of
the
OGCA and (ii) the Certificate of Merger along with any other required document
to be filed with the Secretary of State of the State of Delaware pursuant to
Sections 251 at seq. of the DGCL. The Merger shall become effective when the
last to occur of the following actions shall have been completed:
(a) An
executed Certificate of Merger or an executed counterpart of this Merger
Agreement meeting the requirements of the DGCL shall have been filed with the
Secretary of State of the State of Delaware and said Secretary of State shall
have issued a Certificate of Merger; and
(b) An
executed Articles of Merger or an executed counterpart of this Merger Agreement
meeting the requirements of the OGCA shall have been accepted for recording
by
the secretary of State of the State of Oklahoma and said Secretary of State
shall have issued a Certificate of Merger.
The
date
and time when the Merger shall become effective, as aforesaid, is herein called
the “Effective Date of the Merger.”
2
1.4 Effect
of Merger.
ROK, as
the Surviving Corporation in the Merger, will continue to be governed by the
laws of the State of Delaware and the separate corporate existence of ROK and
all of its rights, privileges, immunities and franchises, public or private,
and
all of its duties and liabilities as a corporation organized under the DGCL
will
continue unaffected and unimpaired by the Merger. At the close of business
on
the Effective Date of the Merger, the existence of Cyberfund as a distinct
entity shall cease. At that time all rights, franchises and interests of ROK
and
Cyberfund, respectively, in and to every type of property, whether real,
personal or mixed, and choices in action shall be transferred to and vested
in
ROK by virtue of the Merger without any deed or other transfer. ROK, without
any
order or other action on the part of any court or otherwise, shall possess
all
and singular the rights, privileges, powers and franchises, and shall be subject
to all the restrictions, disabilities and duties of Cyberfund and ROK, and
all
property, whether real, personal or mixed, of Cyberfund and ROK, and all debts
due to Cyberfund or ROK on whatever account, and all other things in action
or
belonging to each of said corporations, shall be vested in ROK. All property,
rights, privileges, powers and franchises, and all and every other interest
of
Cyberfund or ROK as of the Effective Date of the Merger, including, but not
limited to, all patents, trademarks, licenses, registrations, and all other
intellectual properties, shall thereafter be the property of ROK to the same
extent and effect as such was of the respective Constituent Corporations prior
to the Effective Date of the Merger, and the title to any real estate vested
by
deed or otherwise in Cyberfund and ROK shall not revert or be in any way
impaired by reason of the Merger; provided,
however,
that
all rights of creditors and all liens upon any property of Cyberfund or ROK
shall thenceforth attach to ROK and may be enforced against it to the same
extent as if said debts, liabilities, and duties had been incurred or contracted
by ROK. Neither the rights of creditors nor any liens or security interests
upon
the property of either of the Constituent Corporations shall be impaired by
the
Merger. ROK shall carry on business with the assets of Cyberfund and ROK. The
established offices and facilities of ROK and Cyberfund immediately prior to
the
Merger shall become the established offices and facilities of ROK.
All
corporate acts, plans, policies, resolutions, approvals and authorizations
of
the stockholders, Board of Directors, committees elected or appointed by the
Board of Directors, officers and agents of Cyberfund, which were valid and
effective immediately prior to the Merger shall be taken for all purposes as
the
acts, plans, policies, resolutions, approvals and authorizations of the
Surviving Corporation and shall be as effective and binding thereon as the
same
were with respect to Cyberfund. The employees of Cyberfund shall become the
employees of the Surviving Corporation and continue to be entitled to the same
rights and benefits which they enjoyed as employees of Cyberfund.
3
1.5 Disposition
and Conversion of Shares.
The
mode of carrying the Merger into effect and the manner and the disposition
of
the shares of Cyberfund and ROK shall be as follows:
(a) ROK
Shares.
Each
share of common stock, par value $.001 per share, of ROK issued and outstanding
immediately prior to the Effective Date of the Merger shall, by virtue of the
Merger and without any action by ROK, the holder of such shares or by any other
person, be cancelled and returned to the status of authorized but unissued
shares, all rights in respect thereof shall cease to exist and no shares of
ROK
common stock or other securities of the Surviving Corporation shall be issuable
with respect thereto.
(b) Cyberfund
Non-Dissenting Shares.
Each
share of common stock, par value $.001 per share, of Cyberfund issued and
outstanding immediately prior to the Effective Date of the Merger other than
the
shares, if any, of Cyberfund for which appraisal rights shall be perfected
under
Section 18-1091 of the OGCA (the “Dissenting
Shares”)
shall,
by virtue of the Merger and without any action by Cyberfund, the holder of
such
shares or any other person, be converted into and exchanged for one fully paid
and nonassessable share of common stock, par value $.001 per share, of the
Surviving Corporation.
(c) Cyberfund
Dissenting Shares.
The
holders of Dissenting Shares of Cyberfund common stock who have complied with
all requirements for perfecting the rights of appraisal of stockholders set
forth in Section 10-1091 of the OGCA with respect to their Dissenting Shares
of
Cyberfund common stock shall be entitled to their rights under the
OGCA.
(d) Exchange
of Certificates.
Each
outstanding certificate theretofore representing shares of Cyberfund common
stock that are not Dissenting Shares (the “Non-Dissenting
Shares”)
shall
be deemed for all purposes to represent the number of whole shares of the ROK
common stock into which such Non-Dissenting Shares of Cyberfund common stock
were converted in the Merger and the holder thereof shall not be required to
surrender such certificate for a certificate issued by ROK. However, after
the
Effective Date of the Merger, each holder of an outstanding certificate
representing Non-Dissenting Shares of Cyberfund common stock may, at such
stockholder’s option and sole discretion, surrender the same for cancellation to
OTC Stock Transfer Co., as the sole stock transfer and registrar of the
Cyberfund common stock and as exchange agent therefor (the “Exchange
Agent”),
and
each such holder shall be entitled to receive in exchange therefor a certificate
or certificates representing the number of shares of the ROK common stock into
which the surrendered shares were converted as herein provided.
4
The
registered owner on the books and records of ROK or the Exchange Agent of any
such outstanding certificate representing Non-Dissenting Shares of Cyberfund
common stock shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or the Exchange Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon
the
shares of common stock of the Surviving Corporation represented by such
outstanding certificate as provided above.
Each
certificate representing common stock of the Surviving Corporation so issued
in
the Merger shall bear the same legends, if any, with respect to the restrictions
on transferability as the certificates of Cyberfund so converted and given
in
exchange therefor, unless otherwise determined by the Board of Directors of
the
Surviving Corporation in compliance with applicable laws.
If
any
certificate for shares of ROK stock is to be issued in a name other than that
in
which the certificate surrendered in exchange therefor is registered, it shall
be a condition of issuance thereof that the certificate so surrendered shall
be
properly endorsed and otherwise in proper form for transfer, that such transfer
otherwise be proper and that the person requesting such transfer pay to the
Exchange Agent any transfer or other taxes payable by reason of issuance of
such
new certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of ROK that such tax
has been paid or is not payable.
(e) Validity
of ROK Common Stock.
At the
Effective Date of the Merger, all shares of ROK common stock into which the
Non-Dissenting Shares of Cyberfund common stock are to be converted pursuant
to
the Merger shall be validly issued, fully paid and nonassessable and shall
be
issued in full satisfaction of all rights pertaining to the corresponding shares
of Cyberfund common stock.
1.6 Certificate
of Incorporation of Surviving Corporation.
The
Certificate of Incorporation of ROK as in effect immediately prior to the
Effective Date of the Merger shall continue in full force and effect as the
Certificate of Incorporation of the Surviving Corporation until duly amended
in
accordance with the provisions thereof and applicable law.
1.7 Bylaws
of Surviving Corporation.
The
Bylaws of ROK as in effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the Bylaws of the Surviving
Corporation until altered, amended or repealed as provided in the Bylaws or
as
provided by applicable law.
1.8 Directors
and Officers of Surviving Corporation.
The
directors and officers of Cyberfund as of the Effective Date of the Merger
shall
be and become the directors and officers of the Surviving Corporation, until
their successors shall be duly elected and qualified or until their sooner
death, resignation or removal.
1.9 Accounting
Matters.
The
assets and liabilities of the Constituent Corporations, as of the Effective
Date
of the Merger, shall be taken upon the books of the Surviving Corporation at
the
amounts at which they shall be carried at that time on the books of the
respective Constituent Corporations. The amount of the capital surplus and
earned surplus accounts of the Surviving Corporation after the Merger shall
be
determined by the Board of Directors of the Surviving Corporation in accordance
with the laws of the State of Delaware and generally accepted accounting
principles.
5
ARTICLE
II
GENERAL
PROVISIONS
2.1 Binding
Agreement.
This
Merger Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns.
2.2 Amendments.
The
Board of Directors of Cyberfund and ROK may amend this Merger Agreement at
any
time prior to the filing of this Merger Agreement (or a certificate in lieu
thereof) with the Secretary of State of the State of Delaware, provided that
an
amendment made subsequent to the adoption of this Merger Agreement by the
stockholders of either Cyberfund or ROK shall not: (i) alter or change the
amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of Cyberfund or ROK; (ii) alter or change any term
of
the Certificate of Incorporation of the Surviving Corporation to be effected
by
the Merger; or (iii) alter or change any of the terms and conditions of this
Merger Agreement if such alteration or change would adversely affect the holders
of any class or series of capital stock of either Cyberfund or ROK.
2.3 Further
Assurances.
From
time to time, as and when required by ROK or by its successors or assigns,
there
shall be executed and delivered on behalf of Cyberfund such deeds and other
instruments, and there shall be taken or caused to be taken by Cyberfund such
further and other actions, as shall be appropriate or necessary in order to
vest
or perfect in or conform of record or otherwise by ROK the title to and
possession of all the property, rights, privileges, powers, franchises, assets,
immunities and authority of Cyberfund and otherwise to carry out the purposes
of
this Merger Agreement. The officers and directors of ROK are fully authorized
in
the name and on behalf of Cyberfund or otherwise to take any and all such action
and to execute and deliver any and all such deeds or other
instruments.
2.4 Abandonment.
At any
time before the Effective Date of the Merger, this Merger Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either Cyberfund or ROK, or by both, by the adoption
of
appropriate resolutions and written notification thereof to the other party
to
the Merger, notwithstanding the approval of this Merger Agreement by the
stockholders of Cyberfund or ROK, or by both. In the event of the termination
of
this Merger Agreement and the abandonment of the Merger pursuant to the
provisions of this Section, this Merger Agreement shall become void and have
no
effect, without any liability on the part of either of the Constituent
Corporations or their respective officers, directors or shareholders in respect
thereof.
2.5 Governing
Law.
This
Merger Agreement shall be construed, interpreted and enforced in accordance
with
and governed by the laws of the State of Delaware and, so far as applicable,
the
merger provisions of the Oklahoma General Corporation Act.
6
IN
WITNESS THEREOF, each of the undersigned corporations has caused this Merger
Agreement to be signed in its corporate name by its duly authorized officer
as
of the ___ day of _____, 200_.
| Cyberfund: |
ROK:
|
|||
|
ROK
Entertainment Group Inc.
|
||||
|
By:
|
By:
|
|||
|
Xxxxxxxx
Xxxxxxxxx
President
and Chief Executive Officer
|
Xxxxxxxx
Xxxxxxxxx
President
and Chief Executive Officer
|
|||
7
